Trends and Issues in Personal Injury

AuthorBronagh O'Hanlon- Chloe O'Reilly - Niall Williams
Pages107-120
IRISH JUDICIAL STUDIES JOURNAL
[2020] Irish Judicial Studies Journal Vol 4(1)
107
TRENDS AND ISSUES IN PERSONAL INJURY
LITIGATION
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Abstract: In this article the emerging trends in the trial and conduct of Personal Injury litigation in Ireland
is examined. This will be through analysis of the role of the judge in these cases and an exploration of
developments in statute and case law, with a particular focus on false and exaggerated claims and on s. 26
of the Civil Liability Act and Courts Act 2004. There is also a focus on debates surrounding damages
and costs in this area.
Authors: Ms Justice Bronagh O’Hanlon, Chloe O’Reilly, and Niall Williams
The Role of the Judge in Personal Injury Litigation
Posner has written that the main purpose of the Separation of Powers is, in economic
terms, to prevent the monopolisation of the coercive power of the State …’
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A key question when examining issues in this area is the role the legislative and judicial
branches of state should have with regard to personal injury. The importance of an
independent judiciary cannot be overstated and accordingly this has been given great
significance in our laws. Per Article 35.2° of the Constitution, ‘All judges shall be
independent in the exercise of their judicial functions and subject only to this Constitution
and the law. Every person appointed to be a judge must take the oath set out in Article
34.6.1° of the Constitution the wording of which includes the phrase ‘without fear or
favour, affection or ill-will towards any man, and that I will uphold the Constitution and
the laws.
This constitutional oath is taken very seriously by all members of the judiciary, and this
pledge of independence guides all decision making. A judge in personal injury actions can
no more have a policy of being in favour of insurance companies than they can be in
favour of plaintiffs for example.
In examining the Constitutional role of the judge, the Irish Supreme Court in O’Byrne v
Minister for Finance
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endorsed heavily the words of Dr Schwartz in American Constitutional
Law,
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when he wrote:
Ever since de Tocqueville, outside observers have emphasised the
primordial role of the judge in American society... Because of this high
responsibility the independence of the judiciary from both the legislative
and executive branches is the keystone of American constitutional
government.
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Maguire CJ in O’Byrne held that in the Irish context these words can be applied without
alteration to the position of the Judges under our Constitution.
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1
This article is based on a lecture given by Ms. Justice Bronagh O’Hanlon entitled ‘The Trial and Conduct of Personal
Injury Litigation’ presented at the annual Adrian Hardiman Memorial Lecture Series, 2 July 2019.
2
Richard A Posner, Economic Analysis of the Law, (6th edn, Aspen Law and Business 2002) 894.
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Bernard Schwartz, American Constitutional Law (1sr edn, ABC-CLIO 1969).
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[1960] 94 ILTR 11 [43]-[44].

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